The United States District Court, Middle District of Florida, recently granted defendant loan servicer’s motion to dismiss plaintiff’s complaint alleging violations of the Real Estate Settlement Procedures Act, 12 U.S.C. 2601 et seq. (“RESPA”), on the ground that plaintiff failed to allege any concrete injury. Chadee v. Ocwen Loan Servicing, LLC, 2017 WL 1050386 (M.D. Fla. 2017). In the three-count complaint, plaintiff alleged that defendant violated RESPA and its implementing regulation, 12 C.F.R. 1024 et seq. (“Regulation X”), because defendant failed to acknowledge receipt of plaintiff’s written Request for Information (“RFI”) within the five-day time period set forth in the regulations (count one); that defendant failed to provide the contact information for the owner of plaintiff’s mortgage loan within the ten-day time period set forth in the regulations (count two); and that defendant failed to respond adequately to plaintiff’s RFI in violation of the statute (count three). Plaintiff sought less than $100 in actual damages, plus attorneys’ fees and statutory damages pursuant to 12 U.S.C. 2605(f) for what he alleged to be defendant’s “pattern of disregard to the requirements imposed upon [it] by Federal Reserve Regulation X.” The damages included plaintiff’s counsel’s costs of having to file Notices of Error (“NOE”), in which counsel wrote to defendant and claimed it had not received any response to the RFI. Defendant moved to dismiss the complaint, arguing that plaintiff failed to allege actual damages.
In reviewing defendant’s motion, the court first addressed the third count and found that defendant provided documents relating to the loan servicing, and was not required to respond to items that did not relate to the servicing of plaintiff’s loan. The court found that plaintiff “failed entirely to respond to this argument for dismissal or, indeed, to explain how the response was in any way inadequate[,]” and further held that, although plaintiff made conclusory allegations that defendant’s response was inadequate, the exhibits attached to the complaint suggest the opposite. The court then addressed counts one and two regarding timeliness and found that plaintiff failed to state any factual basis for actual damages incurred as a result of defendant’s conduct. Although plaintiff argued that “damages borne of having to file a subsequent NOE is sufficient to articulate a damages pleading,” the court found that plaintiff had not established there was ever a need to file the NOEs, all of which were prepared and dispatched months after plaintiff’s counsel already received defendant’s substantive response to the RFI. Therefore, “the expenses incurred in preparing and sending the NOEs were not causally linked to [defendant’s] conduct.” The court further cited Spokeo and determined that plaintiff failed to allege any concrete injury to establish Article III standing, thereby dismissing counts one and two.